Chopra v NSW Health Service - South Western Sydney Local Health District - [2024] NSWDC 76 - NSWDC 2024 case summary — Zoe

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Chopra v NSW Health Service - South Western Sydney Local Health District

[2024] NSWDC 76

District Court of NSW|2024-03-06

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-03-06

Catchwords

(2005) 214 ALR 349 du Maurier v du Maurier [2021] NSWSC 83 Fox v Wood (1981) 148 CLR 438
[1981] HCA 41 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Source

Original judgment source is linked above.

Catchwords

(2005) 214 ALR 349 du Maurier v du Maurier [2021] NSWSC 83 Fox v Wood (1981) 148 CLR 438[1981] HCA 41 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Judgment (24 paragraphs)

[1]

The plaintiff's claim

The plaintiff, a nurse with over a decade of experience, was employed at Bankstown Hospital, the legal identity for which is the NSW Health Service - South Western Sydney Local Health District. She brings a claim for negligence for injuries suffered while on nightshift at 9:30 pm on Christmas Day/Boxing Day, 25-6 December 2017 in the EDSSU (the "short stay" section) of the Emergency Department at Bankstown Hospital ("Emergency").
The short stay section of Emergency was comprised of eight beds and two locked rooms for "Mental Health" patients (patients who were or were likely to be dealt with in accordance with the provisions of the Mental Health Act 2007 (NSW)). It was a requirement of the Emergency department's management that it was staffed by two nurses, one of whom had to be a registered nurse.
On the night in question, one of the patients in the ward was a Mr Santos, who was wearing a "moon boot" because of a foot injury. He had been brought to the hospital by his wife, not because of his foot injury, but because of the confused and agitated state he was in.
Mr Santos had a history of alcohol-related declining intellectual capacity problems. He had been involved in a brawl in the Emergency Department of Bankstown Hospital in 2014. There were no further Bankstown Hospital admissions until 2017 but it is clear from the 2017 admissions that his mental health had deteriorated. He was admitted to Bankstown Hospital in March 2017, under s 19 of the Mental Health Act, and transferred to a mental health facility. He was admitted again in May 2017 (in a police "paddy wagon" according to the hospital notes) and sent to the psychiatric unit. Dr Johnstone, at Bankstown Hospital, noted a diagnosis of dementia on a background of alcohol abuse. Mr Santos was admitted again on 29 August 2017, when he was brought in by ambulance after violent behaviour and threats; the hospital notes assessed the risk as "high" as he had tried to strangle his wife. He was detained under s 27(1)(b) of the Mental Health Act after this assault, which was described as "serious" in the hospital's patient notes. After a bail hearing on 5 September 2017 he was released and transferred to Braeside, where he spent about four weeks as an inpatient. Then, on Christmas Day, his wife brought him to the Emergency Department, where he was admitted and assigned to its "short stay" unit until a bed could be found.

[3]

The oral evidence

The plaintiff gave evidence and was cross-examined. She gave evidence clearly and concisely, answering questions fully, making concessions where appropriate and remaining courteous at all times, no matter how searching the questions put to her. She needed a short adjournment on the second day before resuming her position in the witness box but recovered quickly and was able to get through the whole of the cross-examination that day without becoming distressed, being unable to answer or needing further adjournments.
Mr Best expressed concerns about the plaintiff's ability to cope with being in the witness box on the first and second days of the hearing. On the second day, he made an application for these proceedings to be adjourned on the basis that the plaintiff's level of distress was such that she could not be cross-examined properly and that a fair trial was jeopardized in those circumstances: "BEST: Your Honour, my concern that I want to raise is the question of the plaintiff's capacity to answer questions in cross examination and to understand the questions I am obliged to put to her, and then, your Honour, the concern I have is what is to be made of the answers that the plaintiff gives. That arises in circumstances, your Honour, when the plaintiff completed her evidence in chief, between the completion of her evidence in chief and her departing the courtroom, your Honour would have observed, as I did, the plaintiff is extreme distress. HER HONOUR: She said she had spasms. BEST: Essentially what I heard the plaintiff say, your Honour and I didn't take a note but my memory is she said that she had a panic attack this morning and that she had back spasms and she would be like this for four or five days. In the intervening time when she's been outside, your Honour, I know that the plaintiff has been attended to by the sheriff officers. HER HONOUR: Yes. BEST: And the concern I have, your Honour, is that the quality of the answers given in cross examination and the plaintiff's ability to provide proper answers is questionable. That then gives rise to a very real prejudice, potential prejudice, I'm sorry, your Honour, that her demeanour and capacity to give evidence is endangered and it endangers not just the plaintiff's presentation but it has the potential to compromise your Honour's assessment of the veracity of the plaintiff's evidence and it raises a concern with the defendant that, by even cross examining her in her state of extremis, that a proper and fair adjudication of the matters in dispute is not possible. I'm concerned that a fair trial in those circumstances is endangered." (Tcpt, 5 March 2024, p 69).
Mr Cranitch SC responded that his client had to date been able to understand the questions and respond to them, and that she wanted to get the case over and done with.
I refused Mr Best's application for the case to be adjourned, noting my own observation that what had upset the plaintiff was that after she entered the witness box, Mr Best had made an application which required her to leave. Having had the benefit of reading the transcript of the hearing the day before (which Mr Best had not been able to do as it had not yet been provided to him), I was satisfied that her evidence the day before, far from demonstrating problems of the kind adumbrated by Mr Best, in fact consisted of concise and responsive answers to each of the questions put.
Mr Best then made a further application for an adjournment: "BEST: Your Honour, I don't wish to cavil with your Honour's ruling, but can I simply make this submission to your Honour. The presentation of the plaintiff yesterday and what your Honour has made of her presentation yesterday is a world away from the presentation that the plaintiff presented with this morning and it's a slippery slope from capable to incapable and that's obviously a matter your Honour can determine along the way, but I just simply wanted to raise that issue with you." (Tcpt, 5 March 2024, p 70).
I rejected this application as well, on the same grounds, and the hearing continued to finality.
I would add to my reasons for refusing Mr Best's applications that the plaintiff continued to give concise and responsive answers in cross-examination throughout. Mr Best did not explain what he meant by "presentation" and "demeanour", but the plaintiff at all times conducted herself properly and in a dignified manner. She was never unable to answer questions because of her emotional state, she never refused to answer and she remained calm and courteous throughout.
The defendant called no witnesses. No Jones v Dunkel (Jones v Dunkel (1959) 101 CLR 298) point was taken by Mr Cranitch SC.

[4]

The s 318 issues

The issue about which Mr Best had intervened during the plaintiff's evidence was to seek rulings concerning the admissibility of three documents for which leave would be required under s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW): 318 Parties limited to pre-filing statement and defence (1) For the purposes of court proceedings on a claim for work injury damages - (a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and (b) the defendant is not entitled to file a defence that is materially different from any defence served on the claimant in response to the claimant's pre-filing statement within 42 days after service of the pre-filing statement, except with leave of the court, and (c) the defendant is not entitled to file a defence that wholly or partly disputes liability for the claim if the defendant has failed to serve on the claimant a defence to the claim as required by this Division within 42 days after the claimant served the pre-filing statement on the defendant, and (d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court. (2) The court is not to grant leave under this section unless satisfied that - (a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and (b) the failure to grant leave would substantially prejudice the party's case. (3) The regulations may provide for exceptions to this section.
The relevant principles are discussed in discussed in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 (where the fresh material was a witness statement); Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 (where the material in question was surveillance evidence) and Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 (where the question was whether quantum items such as management fees not sought earlier could be claimed).
As noted in the defendant's statement of issues set out above, three documents were challenged: the plaintiff's payslips, the hospital notes for Mr Santos and an "update" report from Dr Khan dated 2 February 2024.
The first and third of these can be disposed of quickly. The plaintiff at all relevant times relied upon her tax returns and if she now sought to tender the payslips and argue there was some defect in the sum in her tax returns, that was a matter that should have been raised earlier. Leave should not be granted. As for Dr Khan's report, s 318(2)(b) and s 318(2)(a) present no bar to a claimant obtaining a supplementary report from a treating expert and the plaintiff is entitled to leave to have the opinion admitted. It is also relevant to note that there were 47 reports from Dr Adbdal Khan for the period 23 May 2018 to 2 February 2024, a number of which would also technically have been in breach of s 318, and no reason was given for the objection to the final report. The defendant could not have been in any way prejudiced by service of this report after prefiling as not only was it an update, but the defendant did not rely upon any medico-legal reports in these proceedings.
The remaining category is the service of extracts from documents produced by Bankstown Lidcombe Hospital pursuant to a subpoena issued by the defendant (not the plaintiff) for production of the medical records of Mr Santos, the patient who attacked the plaintiff. Mr Best submitted that these documents should have been sought from the defendant at the pre-filing stage and that leave should not be granted to the plaintiff to rely upon this material at this hearing. His instructing solicitor swore an affidavit setting out his instructions that these records would not be provided to any party without court proceedings and a subpoena, and this was the reason why the defendant had had to take steps to issue a subpoena itself.
Mr Cranitch SC pointed out that even the defendant would have been unable to obtain these documents at the pre-filing stage, and had had to issue a subpoena in these proceedings to obtain these documents. In those circumstances, Mr Santos's file could never have been obtained by either party for the purpose of pre-filing statements, as there was no subpoena process. The plaintiff and her legal team did not even know Mr Santos's name; it was not disclosed in any of the defendant's pre-filing documentation, as only an MRN (Medical Record Number) was provided by the defendant during that procedure. The defendant was similarly unable to provide its factual investigators with the file because the defendant's Health Care Records - Document and Management policy prevented its use in this fashion, as Mr Ivan Medak, the solicitor instructing Mr Best, set out in his affidavit.
Mr Medak adds, in his affidavit, that the defendant learned the identity of Mr Santos from another source on or about 22 March 2022 but was unable to issue a subpoena until these proceedings were commenced, which was shortly after his discovery. I infer that the defendant only learned of Mr Santos's identity after the pre-filing stage of these proceedings were over.
Mr Best's says that the plaintiff should have made an application under s 318I(2) of the WIM Act for the defendant to produce the medical file for the patient, which the defendant would then have been obligated to provide. He referred me to Mr Medak's affidavit at paragraph 14, where Mr Medak states: "I am aware that pursuant to section 318(2) of the 1998 Act, a person who fails without reasonable excuse to comply with a Direction is guilty of an offence."
However, it is clear from the instructions that were given to Mr Medak that the defendant would not even give these third party medical records to Mr Medak, let alone the plaintiff. Mr Medak was not able to issue a subpoena until after these proceedings were commenced, and even then was able to do so only after obtaining Mr Santos's name from another source, as is noted above. I am satisfied that, if the plaintiff's solicitors had asked for a direction under s 318I(2), the response would have been a refusal, on the basis that such documents would only be obtainable under subpoena and possibly also that the patient's name was not provided (although the patient number was).
Having itself had to issue a subpoena itself for the documents (the use of which would also require leave for the defendant under s 318), it is a counsel of perfection for the defendant to require the plaintiff to have sent a request under s 318I which would clearly have resulted in a refusal.
There are persuasive grounds for holding that leave, if required, should be granted. Both parties sought to tender these documents, and their relevance to the proceedings is self-evident.
For the above reasons, I granted leave to both parties (although Mr Cranitch SC did not formally demand that the defendant establish how it was entitled to leave) to rely upon not only the extracts from Mr Santos's file (Exhibit A) but also the entirety of these records as tendered by the defendant (Exhibit 8).
As Abadee DCJ noted in Skinner v The State of New South Wales [2021] NSWDC 36 at [15], in Strasburger Enterprises Pty Ltd trading as Quix Foodstores v Serna [2008] NSWCA 354, Basten JA (at [37]) described the scheme created by ss 315, 316 and 318 of the WIM Act as involving "potential traps and strategic decisions for both parties." However, where neither party had access to these documents, or even knowledge of Mr Santos's identity, and where no subpoena process was available, there simply were no steps the plaintiff could have taken to force the defendant to identify Mr Santos or to produce his medical file.
The absence of the material concerning Mr Santos at the pre-filing stage was a significant detriment to all the parties. In the plaintiff's case, her expert, Ms Whitby, made a series of factual errors (for example, in describing Mr Santos as having been "scheduled" and as having been brought by police to the hospital after trying to kill his wife) which she might not otherwise have made. An important factor in granting leave is the need for the court to be able, once the privileged or protected material is able to be put before the court in the appropriate way, to get to what Gleeson CJ called the "truth" of the facts to be determined: Benecke v National Australia Bank (1993) 35 NSWLR 110 at 111.

[5]

The plaintiff's evidence

The plaintiff, an experienced nurse with over a decade of employment, described how she had been rostered that night to work in the Short Stay ("EDSSU") section of the emergency department. She described how this small separate section of Emergency was set up with 8 beds plus two rooms capable of being locked which were for the use of what were called "Mental Health" patients. She also explained the requirement was that at least two nurses should be rostered in this section and that one of them should be a Registered Nurse. The patients who were in the EDSSU section were in the process of being transferred elsewhere so there were chairs for ambulant transitioning patients and for visitors.
On the night in question, the plaintiff commenced her shift at 9:30 pm, and was brought up to speed on the patients' issues in the 15-minute "handover". The other nurse, a registered nurse whom she referred to as "Elizabeth", also participated. The "special" nurse ordered for Mr Santos's supervision had not yet arrived. The plaintiff gave unchallenged evidence that there were also security personnel who were in charge of looking after the "Mental Health" patients in the two locked rooms which formed part of the EDSSU.
The plaintiff recalled that she was told during the handover that Mr Santos was there because he tried to "strangle the wife and wife tried to escape, and when she pushed he got a heal line crack on the heel, that's why he got a moon boot" (Tcpt 37). Elizabeth warned her that "he is special already, so you need to be careful with that, and that's it, because the special is looking after and, in case to do the medication things, we came in that place, because special [sic] are not allowed to give the medication" (Tcpt 37). The plaintiff was told by Elizabeth that Mr Santos had been brought in by the police (Tcpt 38). Much of the information she was given was in fact incorrect, as Mr Santos had been brought in by his wife for a foot injury and not because of domestic violence.
The plaintiff described the role of the "special" nurse Mr Santos had as follows: "A. With that patient, yes. And sometimes if the patient, there is categories, like, like the other people, if they are, if they are very high risk of falls then the EN will allocated to look after their specific patient, because they are trying to climb over the rails because they put the bedrails up so they don't have the fall that way. And other way, if the patient is scheduled then they have the special nurse over there to look after that patient, because with that patient if the patient need to go to the bathroom, or any sort of shower, they want to use, so that EN needs to accompany with the patient all the time, and keep an eye on that one, and they write the notes as well. Q. I'm a little bit confused because on the one hand you say that people who are mental health patients are not necessarily noted up, or as such you don't see the notes, but if a patient is scheduled they come with an assistant in nursing, how do you know whether they're scheduled or not? A. We get the handover, verbal handover from the staff, whoever is working before our shifts. Q. When you say, "we", who participants in the handover? A. Okay with the nursing handover, the nurses, we are taking over, they give us the handover. With the doctors, the whoever the doctor is taking over that patient, the doctor give the handover to them. Q. If a patient comes in does the registered nurse, or the enrolled nurse take the history verbally from the patient's accompanist, the assistant in nursing, or whatever? A. Not from the assistant of nursing, that assistant of nursing is there only for to monitor the patient, and to make sure the patient don't jump out of the bed. Or if the patient is getting agitated because when the other nurses, like EN or 2RNS they are busy with changing the other patients and giving the drugs to the other patients, like the medication, sorry, to the other patients, and assisting them with their toiletry needs and other things like that, and nobody's there to mind the patient because you know if the patient is mental health patient that's why the EAN are located, that's called special nurse for that patient. So they can keep continuous eye on that patient, so they won't abscond, they won't run away, they won't harm other patients. So it's like that, that way. So they will be told, they will tell us straight away, and then we approach with a senior." (Tcpt, 4 March 2024, p 37)
As well as a "handover" for about 15 minutes by the departing staff, the plaintiff and the registered nurse taking over also had online access to the hospital notes for these patients. The plaintiff explained that hard copies of the patients' records (except for medication records) were generally kept in the medical officer's office because the hospital did not want the patients (especially "Mental Health" patients) reading their own files. The plaintiff explained that she did not have time to read these files and that she largely depended on the information given to her at the handover.
The "special", an AIN, did not arrive until 11 pm. Over the next 45 minutes the patients were being given night medication and the lights were lowered. By that time, both the RN and "special" nurse had departed (at 23.45 and 23.55 pm respectively) and left the plaintiff alone in the ward.
It was after the "special" nurse departed that Mr Santos, who was by this time sitting on his bed trying to take off his moon boot, beckoned the plaintiff over with a hand gesture. The plaintiff thought that this occurred more or less immediately but I have determined that the most accurate record is the timing of the pressing of the duress button (00:10 am) and the time given on the Incident Report for the alarm being raised by the visitor who came to the plaintiff's assistance (00:13 am) are more likely to be correct.
The plaintiff described how Mr Santos was trying to take the moon boot off and described her reply and his subsequent action as follows: "A. That he wants to take the moon boot off. And then I told him that "You are not allowed to take the moon boot off by yourself". And then he said, "Okay. Come and have a look", it's very uncomfortable for him, and, by the time I came to approach the even though I am quite not close to him but yeah. Q. How close do you think you were? About a metre? A. Yeah, about that much. Q. What happened then? A. And and, suddenly, he just I suppose like, I had bun on the head, because I had very long hairs (as said) before. My hairs are up to my ankles. So, he just grabbed the bun and I tried to he just jump just from nowhere, even though he don't look anything like suspicious that he's going to do something, but and then I tried to relieve (as said) myself from his hand, and then he just grabbed my neck and then then pushed me down and yeah. And I'm just looking I can't see what's happening because I'm my face is towards the floor. And I start pressing the duress alarm, which is only my this side, continuously, but and then I'm yelling, as well, but, again, nobody came to help. And then there is sorry." (Tcpt, 4 March 2024, p 39).
The plaintiff became tearful when recounting these events but maintained her composure. She continued her description of the assault as follows: "Q. Madam, you were telling her Honour about the assault, which happened to on 25 December 2017. I think you'd got to the stage where you were pressing your call button, or your alarm button. Can you tell us what happened after that, so far as you can recall it? A. I was pressing the duress alarm on that time and then I was yelling, as well, for help, and then there is another patient visitor that she jumped in, tried to save me or, you can say, help me, and she tried I don't know what she did, because I can't see, because I was facing the floor on that time, and the only thing I know that he's banging me in the beds (as said) and the walls. Sorry." (Tcpt, 4 March 2024, p 39).
The plaintiff repeated that she was alone in the ward at the time of the assault: "Q. Madam, you said that at one point in time there was a registered nurse and an assistant in nursing present at the unit. What happened to them? Were they present, or not, or they had gone off earlier? A. That one I don't know anything, because the time I wake up I was already a patient on that time. Q. What I'm asking you is, before the attack happened, where were the other two people? A. The they are not there. I was by myself because Elizabeth went off for her break, because NUM told me on that time because she's doing overtime and that's why they asked me to relieve her first for a break, and we already dispensed the medication for the rest of the patients, so, pretty much, it's a calm environment, everyone is settled down. And then NUM pulled out the AIN, as well, and she went for the break, as well, so Q. NUM, being the nursing unit manager; is that right? A. Sorry, yes, the nursing unit manager. Q. So, you were alone at the time when all this happened? A. Yeah." (Tcpt, 4 March 2024, p 40)
In cross-examination, very few questions were put to the plaintiff about what happened on the night in question. She was, however, asked about the system in place: "Q. Do you agree that prior to the shift when you were assaulted, that you had been allocated, on previous occasions, that you had been allocated to nurse mental health patients. A. Okay, if I am working in the EDSSU, in the night time, the mental health rooms covers need to be covered by EDSSU staff. If that's what you're asking, then yes. Q. I take it that it was not uncommon for you, when working within the EDSSU, to be nursing a mental health patient. A. Okay, with the mental health patient, mostly they stays(as said) in their room. There is a security guard, there is a special nurse there, so I don't understand what you want to know. Q. Do you agree that part of your role within the EDSSU, on occasions, was to nurse mental health patients? A. Okay, I'm repeating myself again. With that two rooms, in the night time, it comes under the EDSSU. In the daytime it covers with the triage and the other areas. In the night time, EDSSU covered that rooms and for medication purpose and to check the observation for the patients, we come there, and we go with the security guard or the other nurses. We don't go alone. Q. In terms of the staff within the EDSSU, do you agree that the medical officer there was no medical officer specifically designated to work within the EDSSU? A. There is a medical officer designated to work in EDSSU, but they don't sit there. Q. Do you agree that the medical officer who has responsibility in respect of the patients within the EDSSU, at the same time, is fulfilling duties within the larger emergency department? A. This is the doctor's question. So, I don't know what you are asking why you're asking me. Because the EDSSU doctor, whenever the patient with the patient has their medication chart or we do the blood pressure, whatever, we do their daily needs, we do that. In case the patient needs some extra medication and it's not charted, and the patient is in agony, we approach the Doctor Teo and Doctor Kim to EDSSU and assess the patient and chart the medication and we dispense the medication." (Tcpt, 5 March 2024, p 106)
Apart from being asked about record-keeping and her prior experiences on how patients with mental health or dementia issues were managed by the hospital (which she said was "the doctors question", meaning a question about which a hospital doctor should be asked rather than her), the plaintiff was asked very little about the systems in the hospital and/or the emergency department. Her account of events was largely unchallenged.
The events on the night in question are corroborated by hospital records made on the night in question. Both parties agreed that careful analysis of these documents was essential.

[6]

The parties' reconstruction of the events of the night in question from documentary evidence

The plaintiff provided a chronology of relevant dates in Mr Santos's medical history from 2014 onwards, identifying three specific times on the date of the incident (see asterisked dates in the Table below) and seeking to tender only limited extracts from Mr Santos's medical file as well as the few hospital-generated documents made available by the hospital.
Mr Best, for the defendant, tendered the whole of Mr Santos's file (exhibit 8) and read out a list of relevant times in the course of his submissions.
I have reduced the dates in the plaintiff's chronology and the dates read out by Mr Best to a Table. However, I consider that, in addition to the timed record entries identified as significant by the plaintiff and defendant, there are other entries in the medical history notes and other material disclosed by the hospital that should be specifically identified, such as the exact time at which the duress alarm was pressed and what steps the hospital took to supervise Mr Santos in the ward after the incident. These entries have been added in bold text. There are thus three sources for the Table below. Time Note Source 14:31 Mr Santos is admitted to Bankstown Hospital, the source of the referral being noted as "self/family/friend" Plaintiff's tender bundle P 33 16:00 Plaintiff has a zero falls risk with no prior history of falls P 38 exhibit 8 (This is relevant because a "special" nurse may be allocated for a party who is a falls risk, as opposed to a dementia or mental health risk. The notation that the plaintiff had a zero falls risk demonstrates that the "special" nurse was not allocated for this reason.) *16:05-16:30 ED case history notes: P10 exhibit 8 "Multiple presentations to emergency departments following assaults including head injuries". The plaintiff's chronology extends the defendant's quote from Dr R Davis' comments "Past medical history of mixed dementia with multiple presentations to emergency departments following assaults including head injuries" 17:09 BTF Vital Signs performed by Registered Nurse P57 exhibit 8 ED Delay Reason 17:53 Two Hour Delay: Other (specify) P81 exhibit 8 ED Delay Comment: await dr make decision ED Delay Reason 18:09 Two Hour Delay: Other (specify) P81 exhibit 8 ED Delay Comment: await repost ct 18:27 ED SAFE for Transfer - Medical P82 exhibit 8 20:40 ED to Ward Nursing Safe Transfer P85 exhibit 8 20:49 "Pt has dementia, vital signs as charted. Lt foot swollen, evening meds given, awaiting ward transfer" P23 exhibit 8 23:29 The plaintiff takes Mr Santos's vital signs P 57 exhibit 8 23:48-23:55 Entry by plaintiff: P23 exhibit 8 "Obs stable, pt a+o and ambulant, pt had cam boot on left leg but pt is very upset about cam boot and wanna taken off and pt awake now and very agitated, t/l and mo notified, pt is specialling by AIN but some how t/l need AIN for some where else so no AIN TO LOOK AFTER THE PT ANY MORE. Glasgow coma scale 14-15/15. Patient SITTING ON THE SIDE OF THE BED and conti[nually]. talking to patient for rapid response team review in the mane. Well perfused, nil respiratory distress, talking in full sentences. Nursing Progress Note 00:04-00:13 "Alerted by afternoon NUM at handover time that pt has required a nurse special as he is very confused, AIN is now being deployed to special pt in interview room, P23 exhibit 8 Plan: moving pt to bed 7" [According to the note entered into the records at 00:47, this is the time that the duress button was pressed] P 24 exhibit 8 *0:10 (*stated by Nagdev as 00:13) *The plaintiff's chronology adds a reference to the AIMS incident report completed by Salcochina Nagdev and states that Mr Santos was detained pursuant to s 27(1)(a) of the Mental Health Act 2007; the review by Dr Amlani states: "Known history of mixed dementia, and aggression in past. Attempted to strangle a nursing staff in Emergency stating he wanted to kill her unprovoked." The time of 00:13 is given by Nagdev in the Incident Report at p 46 of Exhibit A. The plaintiff told her doctors that the assault lasted for 15 minutes or 20 minutes. The time delay between the duress alarm and the wider alarm accounts for three minutes and it took staff five minutes to get Mr Santos under control, events which would account for about half this time. For the rest of the 15 or 20 minutes, the plaintiff was being punched or slammed against the wall or floor repeatedly. 00:47 "At 00:10 duress alarm was raised by nursing staff, pt was seen grabbing staff's hair, 5 staff (nursing/relative/medical and security) taken approximately 5 mins to be able to take pt off nursing staff." P24 exhibit 8. 01:05 "Security has been ordered for pt" P 25 exhibit 8 02:24 "Pt's ATOR is alert and responsive unable to attended [sic] the BP as nursing staff was received [sic] 2 MH patient, 1 from isolation that need full search, and the other from bed 12 that constantly removing [sic] cardiac leads and trying to leave and easily get annoyed. Pt has been monitored closely saturating airways between 96% and 98% a/w for security to come and special the pt. ATOR Monitoring 3 MH patient as we have 2 nursing staff short as result of incident in EDSSU. Nursing t/l aware. P 25 exhibit 8 02:46 "Pt is restrained in bed. Cannula in situ left forearm, skin tear left forearm, dressing applied under observation chart for patient under mechanical restraint." P 26 exhibit 8 03:02 "Police has [sic] arrived. Security staff report that during the incident, as pt was put to bed, security has asked pt if he knows where he is, which he had replied, "I am in the hospital and I am trying to kill your nurse." Dr Wong has been reported of [sic] above." P 26 exhibit 8 06:15 "Pt's vital sign attended regularly and removed the restrain [sic] on each limb every 30 min after 0400 hours per T/L instraction [sic]. Pt alert and orientated ATOR. Skin lesions are dressed (2 on the L arm and 1 on R arm)." P 27 exhibit 8

[7]

Mr Santos's attack did not come out of the blue. His admission notes refer to a "high risk of aggression" requiring a "close bed" (Exhibit A, vol 2, p. 11); he was not admitted for his foot injury but because he was "mentally disordered" (at p. 12). A "special" nurse was requested; while the notation for this was not located for me by the parties, it was accepted that this was the case, and I note that there is a recommendation continued after the assault ("1:1 security supervision given tendency for violent behaviour": Exhibit A, vol 2, p. 8, 29 December 2017).
The "special" nurse had not arrived by the time the plaintiff's shift started at 9:30 pm. This nurse did not arrive until 11 pm and then left at around 11:55 pm. However, even while the "special" nurse was there, Mr Santos was still "very agitated", as the plaintiff's entry made between 23:48 and 23:53 pm states in clear terms; he is described as sitting on the bed and trying to take off his cam boot. The plaintiff writes that she is concerned there is no AIN there to look after the patient "any more" which suggests that the special" nurse was in the process of leaving, or had even left, by 23:53 pm.
The timing of the plaintiff's requests for assistance is particularly important. The plaintiff wrote that "t/l and mo" had been notified. The entry was commenced at 11:48 pm and completed at 11:53 am. It is important to remember the plaintiff's explanation that she was not writing the entry continuously during this period and that the time continued to run on her entry if she stopped in order to attend to some other task (Tcpt 141). It is possible that she commenced writing the entry before notifying "t/l and mo" after 11:48 pm but more likely that she did so before commencing to write this entry, which would mean her notification predates 11:48 pm.
The plaintiff's oral evidence (and Ms Whitby's summary) paint a picture of Mr Santos beckoning the plaintiff over almost immediately after the "special" nurse left. This is inconsistent with the notes of Nurse Do, particularly the notes made at 00:47 am, and the Incident Report, which give the times of 00:10 and 00:13 am respectively for the alarms. Those reports are more likely to be accurate.
The next note in time was from Clinical Nurse Specialist Thuy Anh Do, at 12:04 who comments that at handover time (9:30 pm), Mr Santos was noted to require a "special" nurse as he was very confused. According to Nurse Do's note, the AIN sent to perform this task had since been "deployed to special pt in interview room". I was not told what this means, but the most likely inference to draw is that the AIN has been "deployed" elsewhere. Nurse Do's solution was, as he noted, to move the patient (presumably Mr Santos) to bed 7. There is no evidence that Nurse Do went to see the plaintiff. Nurse Do was dealing with this problem somewhere else in Emergency, which is why he was still compiling his entry at a time when the alarm went off at 00:10 am. The Incident Report gives the time of the assault as 00:13, which is likely to be when the assault came to the attention of other staff.
The next entry, at 0:47, is clearly written after the assault, because it records not only that the duress alarm was pressed at 00:10 but the circumstances of the assault.
Mr Best submits that the assault must have occurred before the entry by Nurse Do at 00:04 am, for the following reasons: "BEST: Your Honour, the submission I put to you is that if you follow the timeline that the plaintiff said, that is, the patient attacked her after she completed the note that appears on p 23. That is, after 23.55 because she completed the what the evidence was that she completed the note, he beckoned to it (as said), she went to the bedside and he launched and attacked her. She's immediately pressed the duress alarm. She can't remember anything after that because she was being violently assaulted. She was looking at the ground. She heard someone intervene, it turned out to be a visitor of a patient or someone there and then the security guards arrived and the submission I've put to you is the logical inference is that the entry, performed by Mr Tadgh Dough at 04 must have postdated the assault."
The best evidence of the time that the plaintiff was assaulted is the time that the duress alarm she pressed went off, which is recorded in the notes at 00:10 am. There would be an independent electronic record of when the duress alarm went off, as Ms Whitby notes (CB 63 at paragraph 8.37) and, while I have dismissed most of her report for its many factual errors, I am prepared to accept that a duress button, if pressed, would electronically record the time it was pressed. The defendant has not provided the alarm log for the night in question. In those circumstances, I am satisfied that the alarm was pressed at 00:10 am and the assault came to the attention of other staff at 00:13 am.
There is an even more compelling reason why I would not accept that the assault occurred before Nurse Do's entry at 00:04 am, namely that Nurse Do makes no reference whatever to the assault; Nurse Do's concern at 00:04 am is that the plaintiff required a nurse because he was very confused and Nurse Do planned to solve the problem by moving the patient to bed 7. Compare this 00:04 entry to the entry Nurse Do made at 00:47, where he states that the duress alarm went off at 00:10 following which Mr Santos was seen grabbing the plaintiff's hair and that it took 5 staff members 5 minutes to be able to get Mr Santos away from the plaintiff. This was an assault of some duration.
Finally, I note that it took at least five staff five minutes to drag Mr Santos off the plaintiff, and that these persons include "security" staff and a visitor. The plaintiff said there had been security staff (Tcpt 159) in the ward whose job it was to monitor the two patients in locked rooms. That means that Mr Santos was only subdued when sufficient persons had come from other places to pull him off the plaintiff, and this clearly took a few minutes.
The notes entries paint a picture of the plaintiff being alarmed at being left alone with a "very agitated" patient whose special nurse had been "deployed". First, a "special" nurse was sought and when that nurse (and the RN) went off on breaks leaving the plaintiff alone, she reported this to "t/1" and the medical officer before finishing writing her notes at 23:55 pm. This results in input from Nurse Do who, while somewhere else in the Emergency Department, is recording his concerns about resolving the problem in the entry he wrote between 00:04 am and 00:13 am. Nurse Do was definitely not there when Mr Santos began his assault on the plaintiff which resulted in the plaintiff pressing the duress alarm multiple times at 00:10 am. The only other person there is the woman visiting one of the patients, who raises the alarm by running into the adjoining part of Emergency to get help.
The notes for Mr Santos after the assault confirm that no special nurse can be found even after this incident, and that other "Mental Health" patients are on their way. One of the patients kept trying to remove equipment and leave the hospital. The hospital's solution is to call security (at 01:05 am) and then to apply restraints to Mr Santos (as noted at 2:47 am). The restraints are not removed until 6:31 am (Exhibit 8 p. 27). During this time Mr Santos is also receiving treatment for his cuts and tears on both arms, which I assume was a result of the melee.

[8]

Ms Whitby's report

The plaintiff served an expert report from a Ms Whitby dated 14 December 2021. Ms Whitby is a certified ergonomist and a registered nurse specialising in manual handling and occupational overuse, in a range of industrial situations, with an obvious speciality of systems of work in nursing.
An objection was made to her report being tendered, for two reasons. First, Mr Best submits that Ms Whitby practices as a certified professional ergonomist which, it is submitted, would only permit her to provide reports concerning injuries involving bending and twisting. Mr Best relied upon White v Logen Pty Ltd as Trustee for the Byrn Family Trust [2014] NSWCA 159 at [22]-[27].
In White v Logen Pty Ltd as Trustee for the Byrn Family Trust, an ergonomist provided a report about bending and twisting injuries alleged to have been suffered by a spray painter in the course of his employment. That report was rejected for a number of reasons, arising principally from the inadequacies of the report, but at no stage did the court say that an ergonomist could only comment on bending and twisting injuries and not upon system of work. In the present case, Ms Whitby is a specialist in hospital and nursing issues, holding a PhD from the Department of Medicine at the University of New South Wales. As such, she is ideally placed to review and comment upon systems in use in hospitals for medical monitoring, staffing, appropriate training and other hospital system issues. I am satisfied that Ms Whitby is suitably qualified to provide an expert report of the kind that was prepared here.
As a variation on this argument, Mr Best submitted that there was in fact no recognised expertise for ergonomists, a submission for which I have seen no support in any appellate decisions, including White v Logen Pty Ltd as Trustee for the Byrn Family Trust. Again, even if that were the case, Ms Whitby's expertise as a specialist in nursing and hospital organisation would be sufficient to permit her to prepare a report of this nature.
The second basis upon which Ms Whitby's report is challenged is that there are errors of fact in her report. The main error is her contention that the risk of assault could have been eliminated if Mr Santos had been transferred directly to a mental health unit, which is based upon a mistaken assumption that his admission related to a domestic violence incident earlier that day and that he had in fact been scheduled under the Mental Health Act 2007 (NSW). As the tender bundles from both parties of Mr Santos's records demonstrates, neither of these statements is correct. The difficulty was that Ms Whitby did not have access to this material when she prepared her report.
Mr Best submits that the plaintiff has not proven the basis for Ms Whitby's assumptions. Ms Whitby sets out her sources of material and these are clearly the source for her errors. It would appear that during the pre-filing period, both parties made the same errors as to factual material, an unusual situation but one which also occurred in Milios v Austress Freyssinet Pty Ltd [2016] NSWDC 348, when both experts (one of whom coincidentally was Ms Whitby) were given the same erroneous set of facts to work on.
Where a mistake of fact is made by the expert in report, whether the mistake of fact is a misapprehension common to both parties or not, it must seriously undervalue the importance of that report. Although Ms Whitby's report should be admitted into evidence because she is a person with specialised knowledge expressing an opinion within her area of expertise, little or no weight can be placed on her conclusions as to mitigation and/or elimination of the risk.
The one area about which I propose to accept her evidence is based on her knowledge of hospital procedure in relation to there being a record kept of when a duress button is pressed. This is corroborated by the hospital note at 00:47 am which confirms that the duress button was recorded as being priests at 00:10 AM. I am satisfied that this is when the assault commenced, as the plaintiff pressed her duress button at the first opportunity.
While it is regrettable that there was no updated report obtained from Ms Whitby to reflect the new information contained in the subpoena which resulted in the production of Mr Santos is medical file, the defendant has helpfully sought to overcome this problem by tendering the whole of the file rather than simply permitting the plaintiff to tender those portions of the medical records as the plaintiff's lawyers see fit. However, this has created a new and difficult situation for the defendant, as the contents of those medical records has gone in for all purposes, including establishing what happened for the rest of the night, as is set out in the Table above. It is from those records, as the Table shows, that what really occurred can be ascertained. What is demonstrated is a hospital unable to find staff to control Mr Santos (including the special nurse previously assigned to him), or alternative accommodation for him, even after this distressing assault occurred, and of being obliged to shackle him to the bed for the much of the rest of the night (which required release of the restraints every 30 minutes for medical reasons, as the notes set out).
I was not addressed on the events after the assault, and what they say about the system of work, by either party. While I must exercise the utmost caution in such circumstances, the evidence demonstrates the same problems of staffing and patient management after the assault as well as before, and I propose to draw this conclusion.
Other issues on which I was not addressed was the AIMS incident report completed by Salcochina Nagdev and concerning the attendance on Mr Santos of Dr Amlani. The plaintiff's chronology states that Mr Santos was detained, apparently during the early morning or later, pursuant to Dr Amlani's review of him pursuant to s 27(1)(a) of the Mental Health Act 2007. I have no information as to when, why or if that occurred. The physical restraint of a patient is a very serious step to take and I have no information about how this was decided on (see s 190(2) of the Mental Health Act). However, in view of the absence of submissions on these issues, I have not taken these matters into account in terms of the evidence before me.

[9]

Conclusions concerning liability

The nature of the non-delegable duty an employer owes is set out by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 at [12]: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work." [Citations omitted]
When assessing whether an employer has breached its duty of care to an injured employee, the Court should take into account the principles set out by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47.
When determining causation in relation to the circumstances of the accident and breach of duty, the plaintiff is required to show, on the balance of probabilities, that the breach of duty of care by the defendant caused the injury pleaded, which is essentially a fact-driven question: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506.
Mr Best submitted that Mr Santos "jumped from nowhere" (Tcpt 198) and that none of this was foreseeable in any way. That is not what the evidence shows. Mr Santos was identified as a problem from the time of his admission, which was why he was allocated a "special" nurse. He was observed to be agitated and not being prepared to get into bed with his moon boot but the "special" nurse appears to have been "deployed" elsewhere, the other nurse was on a break and the security staff not present. The hospital was too short-staffed to deal with Mr Santos, even after his very serious assault on one of their staff, and ended up having to restrain him.
Mr Best also submitted that the presence or absence of the "special nurse" would have made no difference, as all that would have happened was that he or she would have been assaulted instead of the plaintiff. I do not accept this submission. Mr Santos attacked the plaintiff shortly after she was left on her own and it may have been that this was a triggering factor in the assault. If he had still attempted to assault one or both of them, it would be likely to have been much more easily controlled, whether or not the "special" nurse had training or expertise in controlling difficult patients. No explanation is proffered for the absence of the security personnel that the plaintiff said were keeping an eye on the patients in the two locked rooms or for the failure of a more prompt response to the duress alarm.
The duty owed by an employer to an employee is that of a reasonably prudent employer, namely a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury. No reasonable care was taken here. The evidence demonstrates that the plaintiff was failed by the defendant at every turn: 1. A "special" nurse had to be allocated because Mr Santos was a risk but it was known by other staff (e.g. Nurse Do) that she had gone off shortly before midnight. She appears not to have returned because she was allocated somewhere else or otherwise not available, as the entries in the above Table demonstrate. 2. The registered nurse had gone on her break at about 11:45 pm. It is unclear whether this was before or after the "special" nurse had gone, but one or both of them must have known that this would leave the plaintiff on her own with a patient in a state of agitation. This prompted the plaintiff not only to put any entry in Mr Santos's records but to seek help from the medical officer and other staff. 3. The security guards whom the plaintiff said were to keep an eye on the occupants of the two locked rooms were not there. Although there is a reference to "security" staff being called in to help control Mr Santos after the assault came to the attention of staff, the Incident Report and Nurse Do's notes (who apparently intervened to take steps after the plaintiff was assaulted, such as speaking to police when they arrived), they seem to have been unavailable even after the plaintiff was assaulted, as there is no note of any security officer coming to help the staff subsequently, despite their being "down" two nurses (not just one) after the plaintiff was admitted as a patient. The other of the "two nurses" no longer available to staff the EDSSU is, I consider, the "special" nurse who left in the circumstances set out above. With insufficient manpower, the solution adopted by the hospital was to restrain Mr Santos for the rest of the night. 4. The duress button pressed at 00:10 am did not result in anyone coming to the plaintiff's aid (this is, the plaintiff said, a common occurrence). The notation of 00:13 am is most likely to be the time noted in the rest of the Emergency ward when the alarm was raised by the visitor (I note Ms Whitby suggests that this could be the case). Both these times occur after the plaintiff sought help from the medical officer and other staff. Although Nurse Do was looking into what to do, nothing was done before it was too late.
The potential for assault or injury of staff by patients in hospitals is so widely known that it should not require expert evidence. Mr Santos was a querulous patient with dementia and a history of violence, who kept trying to take his boot off as he was not prepared to wear the boot in bed.
The employer's non-delegable duty of care is to take reasonable care to avoid exposing workers to unnecessary risks of injury. If there is a real risk of injury to an employee of a task, the employer must take reasonable care to avoid the risk by devising a method to eliminate the risk or alternatively to provide adequate safeguards.
The first question is whether a reasonable person would have foreseen that the system of work for the plaintiff involved a real risk of injury. Given the findings of fact set out above, that is self-evident on the facts of this case.
If the risk of injury as identified is foreseeable, then the next step is to consider the issue of breach of duty of care: Wyong Shire Council v Shirt at [14]. Applying these principles to the facts, the hazard or risk of injury was which should have been foreseen, without the benefit of hindsight, was that Mr Santos was a high-risk patient requiring a special nurse and security oversight and that removing these, for a patient with his history, was a very high risk indeed. The plaintiff's warnings and requests were not answered adequately or indeed at all.
This was a very serious assault that could have had tragic consequences. At the risk of repetition, Mr Santos had immediately been recognised as a patient requiring a "special" nurse. The staff had clearly been warned about his prior violent history as the plaintiff was told about this on handover, albeit erroneously. Taking all of the above into account, I am satisfied that the defendant breached its duty of care to its employee, the plaintiff.

[14]

Past Economic Loss In the Plaintiff's Notice of Amended Assessment - Year ended 30.06.2017, the Plaintiff's taxable income was $60,106. The Defendant submits that as at 30.06.2017, the Plaintiff's net weekly income is calculated as follows: Taxable Income: $60,106.00 Less Tax: -$10,983.04 Less Medicare: -$1,202.12 Plus Fringe Benefit: $17,667.00 Total Net Per Annum: $65,587.89 Total Net Weekly: $1,261.30 The Defendant calculates the Plaintiff's loss as follows: 1. 26.12.2017 to 30.06.2018 = $34,055.10 ($1,261.30 x 27 weeks) 2. 01.07.2018 to 30.06.2019 = $66,912.56 ($1,286,78 x 52 weeks) 3. 01.07.2019 to 30.06.2020 = $67,983.24 ($1,307.37 x 52 weeks) 4. 01.07.2020 to 30.06.2021 = $67,779.40 ($1,303.45 x 52 weeks) 5. 01.07.2021 to 30. 06.2022 = $70,354.96 ($1,352.98 x 52 weeks) 6. 01.07.2022 to 30.07.2023 = $74,646.52 ($1,435.51x 52 weeks) 7. 01.07.2023 to 04.03.2024 = $53,257.40 ($1,521.64 x 35 weeks) Past Loss of Superannuation 11% of $434,989.18 Fox v Wood Damages As at 04.03.2024, the Plaintiff has received $344,443.68 in weekly compensation payments. Future Economic Loss Based on the pre-injury earning capacity of $1,261.30 net per week, the Defendant calculates the Plaintiff's would likely have been earning $1,521.64 net per week, The Defendant calculates the Plaintiff's Future Economic Loss as follows: $1,521.64 x 745.7 -15% for the vicissitudes of life Future Loss of Superannuation The Defendant calculates future loss of superannuation at 13.9% of future economic loss as per the principles of Najdovski v Cinojlovic.

Whether or not I accept the plaintiff's evidence about her ongoing condition (in terms of her ability to work) and future plans depends largely on my findings as to her credit. One of the reasons why I have set out the above Tables in full is that the defendant's Table would appear to reflect figures which do not allow for a challenge to the plaintiff's future earning capacity, but I have nevertheless set out all of the challenges made by the defendant as a witness of credit. This was put forward largely on the basis of her assertedly false answers to questions about her participation in providing false information for a mortgage and about appearing to enjoy herself at social functions recorded on social media. I have dealt with each of these challenges separately.

[15]

The plaintiff's credit in relation to a financial transaction

The plaintiff's credit was challenged in relation to her asserted dishonesty in supplying knowingly false information to obtain a mortgage. The plaintiff and her husband had provided financial information to a bank so that they could buy a house (Tcpt 105 - 113; MFI 4 and MFI 5). It was put to the plaintiff that she and her husband had supplied false or wrong information to the bank in that the plaintiff had, in this documentation identified herself as a full-time nurse and gave her full salary, whereas her services had been terminated in 2020 and she was thereafter only in receipt of workers compensation benefits. The plaintiff responded that she had left all of this to her husband, who generally handled these matters on her behalf, and who had done so even before she was assaulted. If he told her to sign something, she would do so without inquiry.
The document containing the wrong information was not signed by anybody. Although the plaintiff had signed two documents for the bank, neither related to the provision of financial information concerning the plaintiff's employment to the bank in the unsigned document.
The document in question was not merely blank but undated. Looking at the format of the document, it was probably prepared by the bank, but there was no information as to the source of information. The final signed document was not included in the tender.
I also note that the documents had not formed part of the pre-filing documentation and had not been seen by the plaintiff or her legal representatives until the hearing.
Mr Best sought to tender MFI 4 and MFI 5 as business records. As Brereton JA stated in Maaz v Fullerton Property Pty Ltd [2021] NSWCA 79 at [58], admissibility of a previous representation under s 69 of the Evidence Act 1995 (NSW) is subject to three conditions. The first two can be made out; the difficulty lies with the third, in that the party tendering the documents must show that it was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (s 69(2)). The presence of an unsigned document created by an unknown bank employee from unknown documentary sources in a mortgage file does not mean that this document accurately reflects the information given to the bank by the plaintiff's husband.
Even if MFI 4 and MFI 5 were admissible, these bank records should not be entered into evidence by reason of s 135 of the Evidence Act 1995 (NSW), for the same reasons as those set out by Parker J in du Maurier v du Maurier [2021] NSWSC 83, namely that it is impossible for the plaintiff to meet the evidence directly even if she were to call her husband, as there is no guarantee he could remember if he even saw this document, let alone contributed to or corrected it. Its probative value (given the plaintiff's unchallenged evidence that she left all these matters to her husband) is very slight and is outweighed by the s 135 factors militating against its admissibility.
Although the plaintiff tendered an extensive array of medical reports while the defendant tendered nothing, the plaintiff's credit is challenged in relation to the degree of severity of her ongoing disabilities. Before considering the plaintiff's credit in relation to medical issues, I summarise the medical evidence tendered on her behalf.

[16]

The expert evidence: medical issues

The plaintiff served (or re-served) the following medical reports: 1. Three reports from Dr Ben Teoh dated 6 August 2018, 31 October 2019 and 15 May 2021. Dr Teoh was retained by the plaintiff's insurer and these reports were then re-served by the plaintiff. Dr Teoh paints a vivid picture of the assault lasting for about 20 minutes and describes the impact on the plaintiff of this "significantly traumatic" event as profound. He diagnosed Chronic Post Traumatic Stress Disorder (DSM Level 5), adding that her prognosis was guarded and that she was unfit for work. He remained of that opinion in his subsequent reports, describing her condition as having become chronic. In his final report, he states that she "is not able to work at all" and assesses her whole person impairment at 22%. 2. 47 reports from Dr Adbdal Khan for the period 23 May 2018 to 2 February 2024. Dr Khan, the plaintiff's treating psychiatrist, provides a careful and comprehensive account of this treatment over this period of close to six years. He notes she also suffered from chronic pain as a result of the assault (the time for which is put by him at 15 minutes). He also provides a certificate for the plaintiff's husband to receive a carer allowance on Centrelink and mentions the extreme financial pressure the plaintiff and her husband are under. He considers she is totally unfit to work for the foreseeable future (CB 200). 3. Four reports from Dr Richa Rastogi. Dr Rastogi, in medico-legal reports prepared for the plaintiff, concurred with this diagnosis, but put the whole person impairment at 24% (CB 214). He criticises the hospital for not providing ongoing support or a safe environment to work (CB 217). This ongoing lack of support has contributed to her inability to work, making future vocational plans very difficult (CB 217). Her future vocational prognosis was "very poor" as a result (CB 220). He has some very harsh criticisms of the defendant's proposal for psychometric testing, which was put forward on the basis that the plaintiff "may be exaggerating or feigning her condition" (letter from the defendant's solicitors dated 22 December 2022, cited at CB 226), pointing to the consistency and strength of medical opinion concerning the plaintiff's condition and to the inappropriateness of such a test. 4. Six reports from Dr Ramachandran. Dr Ramachandran, a pain specialist, sets out a list of ten pain-related problems the plaintiff has. Physically, the injuries could be compared to the way in which a whiplash injury damages the body (CB 234); all were significant, given the severity of the attack on the plaintiff. A more recent report from another pain specialist, Dr Dickson, dated 5 April 2022 (CB 271) confirms the plaintiff will never be able to work. 5. One report from Dr Peter Snowdon. This report was prepared for the insurer and re-served. Dr Snowdon prepared the report without seeing the plaintiff. He carefully analyses the other medical evidence and concludes that the incident was "sufficiently life-threatening" (CB 244) to warrant the diagnosis given and adds that the amount of treatment required will be "considerable" (CB 244). He compliments Dr Khan on his treatment of the plaintiff (CB 247) as having resulted in some improvement, but concludes (CB 248) that it is highly unlikely that the plaintiff will ever return to work. 6. Reports from Dr Lim, Dr Calvache-Ru and Dr Singh. These were prepared in 2018 - 2019 and are largely of historical relevance. 7. Report from Dr Assem dated 11 December 2020. This is a medico-legal report. Dr Assem concurs with the diagnosis of the plaintiff and expresses the same reservations about her future unemployability.
The defendant's answer to these reports is that the plaintiff is not a witness of credit, for the reasons set out below.

[17]

The plaintiff's credit as a witness of truth

The defendant has long held concerns that the plaintiff is "feigning or exaggerating" (the description given by the defendant's solicitors in their letter of 22 December 2022 cited at CB 226) her symptoms. It was for this reason that the defendant sought an order pursuant to UCPR r 24.3 that the plaintiff undergo psychometric testing: Chopra v State of NSW (South Western Sydney Local Health District) [2023] NSWCA 142.
I am not being critical of the defendant for taking this step; similar applications have been made in other proceedings in this court (Al Ammash v Australian Wide Transport and Logistics Pty Ltd [2018] NSWDC 505; Jafari v Khoury and McDonalds Australia Ltd [2019] NSWDC 394). However, such applications generally require "sufficient evidence" that the proposed testing is capable of throwing light on the medical issues (Hamilton v State of New South Wales [2013] NSWSC 1437 at [51]) and the Court of Appeal made it clear, in Chopra v State of NSW (South Western Sydney Local Health District) at [35]-[38], that there was no (or no sufficient) evidence in these proceedings.
However, the Court of Appeal's reasons for refusing to order the plaintiff to have this testing do not prevent the defendant from putting other evidence before me which may tend to suggest that the plaintiff is "feigning or exaggerating" (CB 226) her symptoms, particularly where there is evidence that was not before that Court at the time of the appeal.
The defendant puts fresh evidence before me, being a folder of a total of 26 photographs of the plaintiff on social media, where she can be seen wearing traditional Indian saris and makeup such as lipstick, smiling at the camera and, on one occasion, joining in dancing with other guests at a community get-together. There are multiple photographs and the plaintiff is only recorded on social media as having attended about 10 social functions in the six years since the assault in 2017; one was a community charity event (for which she can be seen dancing with her husband), another was a lunch at a local club and the rest were family birthdays. That is not to say, of course, that the plaintiff never went out at all; she agreed she had had dinners at the club with her family and attended religious festivals.
Regrettably, the photographs and the video were not provided to any medico-legal experts for their consideration as to whether these are evidence of feigning or exaggerating. I am asked to infer this from what they portray and from the assertedly unsatisfactory explanations given by the plaintiff in cross-examination.
First, it was put to the plaintiff that she had not been honest when she described what she had done at the videoed event because she had not included, in her description of the limited activities she said she had taken part in, going onto the dancefloor to dance: "Q. Do you agree that when I asked you questions about this function that you had the opportunity to tell her Honour that, in addition to eating food, having photos taken and attending the rest room as required, you could have told her Honour that you participated in dancing? A. But whatever you ask, I answer that question. You didn't ask the dancing on that time. Q. I asked you what you did, madam, didn't I? A. I don't know now, but whatever you asked, I answered. … Q. Do you agree that you did not tell her Honour that you participated in the dancing that has been depicted on the video when given the opportunity to do so? A. Whatever you asked, I answered that. And you asked the dance because you're talking about my folk dance. This is not a folk dance. Q. I didn't ask you about folk dancing, madam; I asked you about dancing A. But you didn't ask about the dancing either on that time. Q. I want to suggest that you deliberately chose not to disclose the fact that you had engaged in this form of dancing on this night at this function? A. That's not true. (Tcpt, 5 March 2024, p 124 - 5)
Second, the plaintiff was challenged about smiling in the photographs: "Q. Do you agree that you are smiling and happy in that photograph? A. Okay, in the photograph, who cry? Nobody cries. Everyone's smiling because that's your memories." (Tcpt, 5 March 2024, p 121 - 122)
Third, the plaintiff was asked about why she was wearing a beautiful sari and make-up at these functions: "Q. … to the traditional dancing ceremonies. A. And when we visit to the temple, we have to be [sic] the tradition clothes. Q. Do I take it that paying particular regard to your presentation, dressing in the finest clothing, wearing makeup, and looking beautiful is a very important part of the cultural tradition. A. That's correct. Q. I take it that when you participated in the cultural dancing, you were able to use your skills, as a dress designer, to look your finest. A. No, because that required a quite a time to make a dress. So, it's better to order form [sic] India. Q. Rather than making your own dress, you'd order a dress. A. From India. Q. And you'd wear those dresses to those cultural occasions; is that right? A. Yeah, yeah. Q. But I take it that when attending those cultural occasions, you would pay particular attention to your presentation to make sure you looked your best. A. Yes. Q. And that required hair, makeup and dressing beautifully; is that right? A. Depends. If you like to do the makeup, you go with that, otherwise you can go as it is." (Tcpt, 5 March 2024, p 91)
I am asked to interpret these photographs and this video as evidence that the plaintiff has not been frank with the court about her health in circumstances where she was in fact "exaggerating or feigning" (CB 226) her symptoms. Mr Best submitted: "… what your Honour is confronting is just a vanilla case of whether or not the plaintiff was truthful to you in her evidence in respect of her ability to engage in dancing. That's what that video boils down to, your Honour. What the plaintiff says is that after this incident, she couldn't get back to cultural dancing. Now, your Honour, I didn't suggest to her that she could, and at 91 I say, "You described not...dancing as well". So it's not a question of a trap or a trick. The plaintiff was asked a very simple question, "Have you been able to get back to any sort of dancing?", and her answer was emphatic, no. Your Honour, that is simply not the case. In cross examination when confronted with it, she said, that's not dancing, that's jiggly around, that's I only move my arms, and then it moved a bit more, and ultimately, your Honour, the submission I put to you, she says at 119, "Did you see yourself dancing?", answer, "That's not a dance". 121, "I appreciate it's...can say yes". This is in circumstances, your Honour, where she said in answer to the question, "Well, if you'd asked me about dancing, I would've told you". Now, your Honour, in fairness to the plaintiff, I asked her to describe what she did at those functions, and your Honour, she told you that she would go, she'd have photos, and she would leave. Then she expanded on that by saying she would go, she would eat food, she would use the restroom, she would watch, she would leave. She had every opportunity to tell your Honour, oh look, I do move on the dancefloor, and yes, I do engage in some form of dancing, but it's not cultural dancing, but yes, I do it. But she didn't."
The video shows the plaintiff shuffling and waving her arms for a few seconds on the dance floor. It does not show her performing cultural dancing or performing any movements (dance or otherwise) of any significant kind. The plaintiff is certainly dressed beautifully in traditional Indian clothing and wearing lipstick, but so are all the other women who are participating.
The plaintiff's evidence was that her family sought to encourage her to participate in family and community social activities and that, apart from the community charity event and family birthdays, she generally refused. In this case, her husband pulled her out onto the dance floor.
I accept the plaintiff's evidence that her social life is very limited and that while on a few occasions over the past six years she has attended family birthdays or a community event nicely dressed, this is as a result of family pressure.
Further, I do not accept that such conduct is evidence of exaggerating or feigning, or that such a claim is capable of being proved in this fashion, for the reasons explained in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [16]-[108] and Angel v Hawkesbury City Council [2008] NSWCA 130 at [70]-[72]. The first is the need to be aware of cultural issues in relation to demeanour and credit; those issues arise in part because of the plaintiff's Sikh heritage, which dictates certain dress and make-up codes, and in part because she is a woman. The second is the need to exercise caution when interpreting evidence, especially photographic or video evidence, without the benefit of expert guidance.
These photographs and the video are, at best, the flimsiest of evidence and, when weighed against the opinions of all medical professionals consulted for reports in these proceedings, plaintiff and defendant alike, could be of no weight whatsoever as evidence of the conduct with which she is charged by Mr Best.

[19]

Past economic loss and superannuation

The plaintiff gave evidence of her intention to continue with nursing studies when her children were older and hoped to become a nurse educator.
This evidence was challenged by the defendant. Mr Best submitted that the appropriate way to deal with these future eventualities is to apply a Malec v Hutton (Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20) calculation of the percentages likelihood of those outcomes.
Having accepted the plaintiff as a witness of truth, and noting evidence of her inquiries about courses made at one of the universities offering these kinds of courses, I unreservedly accept that she had indeed made these plans. There are references in the medico-legal reports to the plaintiff disclosing her long-held wish to be a nurse educator. I take into account, as a significant factor, the plaintiff's work history as well as her explanation of her desire to advance in her career as a long-held dream, not achievable earlier in her career because she had "three little ones" (as she called her children) but which had always been her aim, hence her inquiries at UTS about the relevant courts.
I also take into account that the plaintiff has demonstrated ambition because she has worked extremely long hours throughout her nursing career. It is significant that the night on which the plaintiff was injured was Christmas Eve going into Boxing Day. Although the plaintiff is a Sikh by religion, Christmas is a festival celebrated by everyone in Australia. The plaintiff was working that night because of her commitment to earning a salary that would help her to get ahead in life and the desirability of the extra money for working shift hours of this kind. I have no doubt that this same spirit would have animated her future nursing career.
The financial difference between the two Tables is not large. The plaintiff allows for a drop in salary while she is studying. The defendant has used the plaintiff's earnings for the year ending 30 June 2017 as the benchmark, included the fringe benefit sum, founded on the net weekly wage of $1,261.30, and then added CPI increases to the current time. The plaintiff's Table estimates the future gains from the plaintiff's studies, while the defendant's calculations in respect of the entirety of past economic loss are based upon the plaintiff remaining as an endorsed enrolled nurse and not commencing the studies she said that she would take.
As I have accepted the plaintiff's evidence on all issues, I propose to accept the formulation for both past economic loss and past superannuation put forward by the plaintiff.

Chopra v NSW Health Service - South Western Sydney Local Health District

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